February 19, 1951.
Cross appeals from an order made in an action to recover damages for breach of an employment contract. Defendant appeals from so much of the order as denies its motion to direct a reply to a portion of the answer and to the first affirmative defense as well as to the granting of that part of plaintiff's cross motion as sought dismissal of the first affirmative defense. Plaintiff appeals from so much of the order as denies his motion to strike out the second affirmative defense. Order, insofar as appealed from, affirmed, without costs. No opinion.
Nolan, P.J., Carswell, Johnston and MacCrate, JJ., concur; Wenzel, J., dissents in part, with the following memorandum:
I dissent in part and vote to modify the order by providing that plaintiff's motion to strike out the first affirmative defense be denied and that defendant's motion to direct plaintiff to reply to that defense be granted. While that defense is inartistically drawn and attempts to allege "fraud and undue influence," it also charges abuse by the plaintiff of his relationship of attorney for the defendant and the stockholders thereof, and of his position as sole executor and attorney of the estate of the defendant's deceased former president and principal stockholder, in inducing the making of the contract. This action is against a corporation for breach of a written contract of employment. I doubt whether the relationship of the plaintiff with the individual stockholders thereof, and with the decedent's estate may be shown under a general denial. [See post, p. 698.]